Saturday, October 6, 2012

Liability Verdict in Dirty Medical Instrument Class Action

I am currently handling two class action lawsuits in Pittsburgh, Pennsylvania in which patients were exposed to unclean medical instruments.  In both cases, Pittsburgh residents received letters advising them that they had been exposed to dirty medical equipment and should undergo blood testing to rule out communicable diseases.  Because credit should be given where it is due, I got the idea for these lawsuit from the great attorneys of Berger & Lagnese.  If it were not for the hard work they put into the case of Haluska et al. v. Forbes Regional, obtaining a liability verdict for the plaintiffs, I would never have known about handling these cases as a class action.

With that in mind, I think it's worth recapping what has occurred thus far in the Haluska lawsuit.  In this Pittsburgh, Pennsylvania class-action suit, plaintiffs Barbara Haluska, Linda Kiszie and Thomas Welsch alleged that the Forbes Regional Hospital in Pittsburgh had failed to ensure that its medical staff knew how to properly clean two newly purchased colonoscopes. As a result of the alleged failure more than 200 hundred  patients underwent colonoscopies with a scope that had not been properl disinfected, thereby subjecting each patient to the risk of contracting a blood-borne illness, such as human immunodeficiency virus (HIV) or Hepatitis C.

In September 2004, the administrative staff at Forbes Regional Hospital purchased two Olympus colonoscopes. The hospital already had several older Olympus scopes in the use in its GI lab. However, these two new Olympus scopes were different in that they had a new water-jet channel feature. The water-jet channel lets the physician spray a jet of water out of the tip of the colonoscope, removing residual fecal material and enhancing intra-colonoscopic colon-wall visualization.

According to court documents, the two new Olympus scopes were delivered in late October 2004. Along with the new scopes, the hospital reportedly received a user manual, a manual on cleaning the new scopes, and other literature from the manufacturer describing the proper way to use the new scopes, as well as the proper way to clean them. The plaintiffs alleged that the literature strongly warned users of the new scopes that the water-jet channel needed to be disinfected after each use, otherwise subsequent patients would be subjected to the risk of communicable diseases and infection. The scopes also apparently came with special equipment needed to properly clean the water-jet channel.

The class claimed that Forbes Hosptial personnel decided that they did not need to read the manufacturer's use- and cleaning-related literature before placing the new scopes into regular service. Moreover, hospital personnel instructed the gastroenterology lab's colonoscope-cleansing team to disinfect the new scopes in the exact same way as they disinfected the older Olympus scopes, it was alleged. The plaintiffs contended that the special disinfecting equipment that came with the new scopes had been put back inside the carrying cases in which the scopes were delivered, and placed in a storage closet.

According to the plaintiffs, a cleansing-team member alerted her supervisor in the GI lab, and asked the supervisor whether the extra channels required any special cleaning. Without making any phone calls to Olympus or going back and reading any of the literature that accompanied the new scopes, the hospital supervisor allegedly instructed the cleaning tech to just keep cleaning the new scopes in the same manner as the older scopes.

The new scopes were removed from service in late February 2005, when fecal debris was seen dripping from the end of one of the new scopes as it was hanging to dry out following a cleaning, according to court documents.

Haluska, Kiszie and Welsch sued Forbes Regional Hospital and its corporate parent, West Penn Allegheny Health System, alleging medical malpractice. The litigation ultimately proceeded to trial as to liability only.

Plaintiffs' counsel argued that in failing to conduct even the most cursory review of Olympus' literature, hospital personnel never learned that the scopes had a new feature, let alone how to disinfect the new feature between colonoscopies. In complete disregard of patient safety, hospital personnel decided to assume that the new Olympus scopes were exactly the same as the older Olympus scopes, even though the new scopes carried a different model name, and even though the new scopes appeared different.

Internal hospital e-mails detailed how, after the new scopes were placed into service, the GI lab began to experience "periodic issues" with the new scopes. The scopes apparently would not always "come clean" when subjected to the hospital's routine cleaning process. This prompted the scope-cleaning technicians to subject the new scopes to repeated cleanings in an effort to get them to "come clean." The problem, according to plaintiffs' counsel, was that with the equipment needed for the cleaning of the water-jet channel locked safely away in the storage closet, the water-jet channel was not being cleaned at all, no matter how many washings the scopes underwent.

The plaintiffs also maintained that the hospital had located in its files a memorandum that it had received from Olympus in 2003. In the memo, titled "Important Safety Notice," Olympus identified all models of Olympus colonoscopes that contained the special water-jet channel features. The memo then strongly warned all Olympus colonoscope users regarding the importance of cleaning the water-jet channel between each and every scope use.

The defense denied the allegations.  The defendants argued that in order to establish liability, plaintiffs' counsel had to prove that the colonoscopes in question had, in fact, been negligently disinfected to the extent that the plaintiffs were exposed to tangible risks of harm. Despite their gross mischaracterization of the colonoscopes as "contaminated," the defense argued, the plaintiffs could not present any evidence that any class member had been exposed to a colonoscope that was actually contaminated or that carried any infection. Moreover, it was argued, inasmuch as no class member had contracted even the most minimal of illnesses from exposure to the colonoscopes in question, one can draw the inference that both of the colonoscopes had been cleansed in an appropriate fashion.

The plaintiffs claimed in their pretrial memorandum that they needed to undergo two rounds blood-testing over a six-month period in order to order to rule out the presence of blood-borne communicable diseases, such as HIV and hepatitis, which are capable of being transmitted by an improperly cleaned colonoscope. This testing caused significant inconvenience and stress in their lives, they claimed.

Furthermore, it was alleged, the plaintiffs were told that until the testing was completed, and it was verified that the individuals had not contracted any blood-borne illness, they should refrain from having unprotected sex, or doing much things as sharing an ice-cream cone with their children or grandchildren.

Following a two-day trial, the jury concluded that Forbes Regional was negligent.  Plaintiffs' counsel relates that there is a tentative plan to conduct individual mini-trials as to damages for each of the 200-plus victims.

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